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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Korkow (12/13/2013) sp-6856

State v. Korkow (12/13/2013) sp-6856

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

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STATE OF ALASKA,                                          )  

                                                          )    Supreme Court No. S-14468  

                           Petitioner,                    )    Court of Appeals No. A-10488  

                                                          )    Superior Court No. 3AN-05-01915 CR  

         v.                                               )  

                                                          )    O P I N I O N  

JIMMY JACK KORKOW,                                        )  

                                                          )   No. 6856 - December 13, 2013  

                           Respondent.                    )  


                  Petition for Hearing from the Court of Appeals of the State of  


                  Alaska, on appeal from the Superior Court, Third Judicial  

                  District, Anchorage, Eric A. Aarseth, Judge.  

                  Appearances:  Kenneth M. Rosenstein, Assistant Attorney  

                  General,      Office     of    Special     Prosecutions        &    Appeals,  

                  Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                  Juneau, for Petitioner.  Glenda Kerry, Law Office of Glenda  


                  J. Kerry, Girdwood, for Respondent.  

                  Before:  Fabe, Chief Justice, Carpeneti, Winfree, Stowers and  


                  Maassen, Justices.  

                  WINFREE, Justice.  


                  Jimmy Jack Korkow was convicted of first-degree murder for beating and  


stabbing his wife to death while the couple's young children were present in the family  


home.  The trial court sentenced Korkow to 99 years in prison with no possibility for  

discretionary parole until he served 50 years.  The court of appeals reversed the 50-year  


----------------------- Page 2-----------------------

parole restriction as clearly mistaken, and we granted the State of Alaska's petition for       

hearing on that issue.                              Because the trial court correctly applied the statutory restriction         

on parole after making sufficient findings supported by the record, we reverse the court   

of appeals and hold that the restriction was not excessive.  


                               In March 2005 Jimmy Jack   Korkow   killed his wife in their apartment,  

beating  her  and  inflicting  at  least  62  stab  wounds.    The  Korkows'  three  youngest  


daughters were in the apartment at the time; at least one of them was aware of the attack  

and moved from her bed into a closet.  Korkow was convicted of first-degree murder  


after a jury trial.  The trial court imposed the maximum sentence of 99 years with no  


suspended time and restricted Korkow's eligibility for discretionary parole beyond the  

33-year statutory minimum until he served at least 50 years of his sentence.  The trial  


court imposed its parole limitation in light of the severity of Korkow's actions, his lack  

of remorse, and the need to protect his children and the general public.  

                               The court of appeals reversed the trial court's parole limitation as clearly  


mistaken, basing its decision on a presumption that when a lengthy sentence is imposed  


discretionary parole questions are better left to the Parole Board because it can evaluate  

the  parole  applicant's  "tested  response  to  Department  of  Corrections  rehabilitative  


measures."   Reiterating language from its earlier cases, the court emphasized that trial  

courts  "should  not  place  'inordinate  emphasis  .  .  .  on  predictions  of  possible  future  

                1              Korkow v. State , 258 P.3d 932, 934 (Alaska App. 2011) (quoting Cheely  

v. State, 861 P.2d 1168, 1181 (Alaska App. 1993)).  

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----------------------- Page 3-----------------------



misconduct,' "  and concluded the trial court's concern that Korkow was a danger to his  

children and the public was "speculative . . . at best."3  


                    We granted the State's petition for hearing to consider:  (1) the efficacy of  


the court of appeals' "presumption"; and (2) what factors should be considered when  

restricting parole eligibility.  


                    Sentencing decisions are reviewed under the clearly mistaken standard,  


giving  deference  to  the  sentencing  court.     "[T]he  clearly  mistaken  test  implies  a  

permissible range of reasonable sentences which a reviewing court, after an independent  


                                                           This test is "founded on two concepts:  first, that  

review of the record, will not modify." 


reasonable judges, confronted with identical facts, can and will differ on what constitutes  

an appropriate sentence; [and] second, that society is willing to accept these sentencing  


discrepancies, so long as a judge's sentencing decision falls within 'a permissible range  

of reasonable sentences.' "6  

                    The interpretation of a statute is a question of law to which we apply our  

independent judgment, adopting "the  rule  of law that is most persuasive in view of  

          2        Id. (quoting Skrepich v. State, 740 P.2d 950, 954 (Alaska App. 1987);                               Maal  

v. State, 670 P.2d 708, 711 (Alaska App. 1983)).  

          3        Id. at 935.  



                    State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000) (citing McClain v.  

State, 519 P.2d 811, 813-14 (Alaska 1974)).  

          5        Id. (quoting McClain , 519 P.2d at 813).  

          6        Id. (quoting Erickson v. State , 950 P.2d 580, 586 (Alaska App. 1997)).  

                                                             -3-                                                        6856

----------------------- Page 4-----------------------



precedent,  reason,  and  policy."     "When  interpreting  a  statute,  we  look  first  at  the  



statute's language, legislative history, and legislative purpose."                             "[U]nder our sliding- 


scale approach to statutory interpretation . . . 'the plainer the language of the statute, the  

more convincing any contrary legislative history must be' " to overcome the statute's  


plain meaning.    


          A.       Alaska's Sentencing And Parole Framework  

                   Alaska's statutory sentencing framework aims to ensure "the elimination  


of unjustified disparity and the attainment of reasonable uniformity in sentences."                                            


First-degree  murder  carries  mandatory  terms  of  20  years  minimum  and  99  years  



maximum, and sentencing courts may impose a sentence within that range. 



courts must consider the factors set out in AS 12.55.005 when imposing sentences. 

          7        State,  Dep't  of  Corr.  v.  Heisey,  271  P.3d  1082,  1085  (Alaska  2012)  

(quoting Ruckle v. Anchorage Sch. Dist. , 85 P.3d 1030, 1034 (Alaska 2004)).  

          8        Id. at 1086 (citing Shehata v. Salvation Army, 225 P.3d 1106, 1114 (Alaska  


          9         Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012) (quoting  

Bartley v. State, Dep't of Admin., Teachers' Ret. Bd. , 110 P.3d 1254, 1258 (Alaska  



          10       AS 12.55.005.  

          11       AS 12.55.125(a).  

          12        These factors incorporate the criteria we outlined in State v. Chaney,  477  

P.2d 441, 444 (Alaska 1970).  See Nell v. State, 642 P.2d 1361, 1369 (Alaska App. 1982)  


("The  Chaney  criteria  have  essentially  been  incorporated  into  the  criminal  code  as  

AS 12.55.005.").  The enumerated factors in AS 12.55.005 are:  

                             (1) the seriousness of the defendant's present offense  



                                                             -4-                                                       6856

----------------------- Page 5-----------------------


With murder convictions, sentencing courts may, but are not required to, increase or  

decrease a sentence based on findings of statutory aggravating or mitigating factors.13  


Finally, "maximum sentences generally should not be imposed without some foundation  

for characterizing a defendant as the worst type of offender."14  

                   A prisoner is eligible for discretionary-parole consideration after serving  


                                                                                      or (2) a longer time period  

(1) "one-third of the active term of imprisonment imposed," 

          12	      (...continued)

                   in relation to other offenses; 

                            (2) the prior criminal history of the defendant and the  


                   likelihood of rehabilitation;  

                            (3) the need to confine the defendant to prevent further  

                   harm to the public;  

                            (4) the circumstances of the offense and the extent to  


                   which the offense harmed the victim or endangered the public  


                   safety or order;  

                            (5) the effect of the sentence to be imposed in deterring  


                   the  defendant  or  other  members  of  society  from  future  

                   criminal conduct;  

                            (6)  the  effect  of  the  sentence  to  be  imposed  as  a  

                   community  condemnation  of  the  criminal  act  and  as  a  

                   reaffirmation of societal norms; and  

                            (7) the restoration of the victim and the community.  



                   AS 12.55.155; see Allen v. State, 56 P.3d 683, 684 (Alaska App. 2002)  

(approving use of factors by analogy in murder sentencing).  

          14       State  v.  Wortham ,  537  P.2d  1117,  1120  (Alaska  1975)  (citation  and  


quotation marks omitted) (cited in State v. Graybill, 695 P.2d 725, 728 (Alaska 1985);  

Baker v. State , 182 P.3d 655, 658 (Alaska App. 2008)).  

          15       See AS 33.16.090(b)(1).  

                                                           -5-	                                                   6856

----------------------- Page 6-----------------------

the sentencing court sets as part of the sentence.                    16  When a prisoner becomes eligible for  

discretionary parole, it may be granted by the Parole Board under the standards set out   


in AS 33.16.100.               

          B.        Korkow's Sentence  

                    At   Korkow's   sentencing   hearing   following   his   first-degree   murder  


conviction, the superior court made a worst offender finding.  The court also found four  

                                                                                           18 (2) conduct among the  

aggravating factors:  (1) a history of prior assaultive conduct; 

most serious included in the first-degree murder definition;19  (3) an offense committed  


          16        See AS 12.55.115; see also  State v. Malloy, 46 P.3d 949, 954 (Alaska 2002)  

(noting that sentencing courts have authority to restrict a defendant's eligibility for parole  

when imposing a 99-year term of imprisonment).  

          17        AS 33.16.100(a) provides:  

                    The  board  may  authorize  the  release  of  a  prisoner  on  


                    discretionary parole if it determines a reasonable probability  


                    exists that  

                              (1) the prisoner will live and remain at liberty without  


                    violating any laws or conditions imposed by the board;  

                              (2) the prisoner's rehabilitation and reintegration into  


                    society will be furthered by release on parole;  

                              (3) the prisoner will not pose a threat of harm to the  

                    public if released on parole; and  

                              (4)  release  of  the  prisoner  on  parole  would  not  

                    diminish the seriousness of the crime.  

          18        See AS 12.55.155(c)(8).  

          19        See AS 12.55.155(c)(10).   

                                                              -6-                                                        6856

----------------------- Page 7-----------------------


against a spouse;            and (4) an offense committed in the physical presence of a child under   


16 years of age living with both the perpetrator and victim.                                 The court relied primarily  

on the last two aggravating factors in fashioning its sentence.  


                    Considering relevant Chaney factors - including protection of Korkow's  

children, reinforcement of societal norms, community condemnation, and isolation of the  

criminal - the court imposed the maximum sentence of 99 years with no suspended  


time, and restricted Korkow's eligibility for discretionary parole until he served at least  


50 years of his sentence.  The court explained that based on the severity of the case and  


Korkow's lack of remorse and concern for others, the restriction was necessary to protect  


the public, Korkow's children, and their future children.  Absent that restriction, Korkow  

would be eligible for discretionary parole after 33 years.22  

          C.        The Presumption  

                    When reversing the superior court's imposition of a 50-year restriction on  


Korkow's  discretionary  parole  eligibility,  the  court  of  appeals  relied  upon  a  legal  


presumption that when a sentencing court imposes a lengthy sentence, "questions of  


discretionary release are better left to the Parole Board, since the Board evaluates the  


advisability of parole release in light of the defendant's tested response to Department  


of Corrections rehabilitative measures."                           The State argues that this presumption is  

incorrect as a matter of statutory interpretation.  Korkow contends the court of appeals  


is correct because the statutory framework makes discretionary parole after serving one- 

          20        See AS 12.55.155(c)(18)(A).  

          21        See AS 12.55.155(c)(18)(C).  

          22        See AS 33.16.090(b)(1).  

          23        Korkow v. State , 258 P.3d 932, 934 (Alaska App. 2011) (quoting Cheely  

v. State, 861 P.2d 1168, 1181 (Alaska App. 1993)).  

                                                                -7-                                                         6856

----------------------- Page 8-----------------------

third of a sentence the default provision, and therefore presumptively appropriate.  We  


agree with the State.  

                   Alaska Statute 12.55.115 expressly empowers a sentencing court to restrict  


eligibility   for   discretionary   parole   beyond   that   required   by   AS   33.16.090   and  


AS 33.16.100, which, in relevant part, bar release on discretionary parole until one-third  

of the prisoner's active term has been served.24  Nothing in these statutes' plain language  

or legislative history suggests room for a legal presumption limiting a sentencing court's  

power to restrict discretionary parole eligibility beyond one-third of the prisoner's actual  


term.    And  nothing  in  these  statutes'  plain  language  or  legislative  history  suggests  

sentencing courts are to limit this power out of deference to the Parole Board.  


                   A significant weakness in Korkow's statutory argument is its limitation to  

"lengthy  sentences."    If  the  statutory  framework  creates  a  legal  presumption  that  

sentencing courts must overcome to impose a longer-than-minimum time period for  


discretionary parole eligibility, then that legal presumption would apply to all sentences,  


not just lengthy sentences.  The statutory framework is better viewed  not as  a legal  


presumption that must be overcome to impose a longer period for discretionary parole  

eligibility, but rather as a statutory minimum that sentencing courts may not ignore.  In  


a somewhat similar context, we recently rejected an argument that legislatively imposed  

mandatory minimum periods constitute a "legislative preference."25  


                   The common law also does not provide much basis for Korkow's support  

of  the  court  of  appeals'  legal  presumption.    In  Gullard  v.  State  a  young  man  was  

convicted of manslaughter and the sentencing court imposed a ten-year sentence with  

          24       See AS 33.16.090(b)(1), AS 33.16.100(a).  

          25       See  Bottcher  v.  State,   300  P.3d  528,  533-34  (Alaska  2013)  (rejecting  

argument that mandatory minimum periods for driver's license revocations constitute a  

"legislative preference" for imposition of minimum revocation periods).  

                                                            -8-                                                          6856  

----------------------- Page 9-----------------------



one-third  to  be  served  without  the  possibility  of  parole.                            We  reversed  the  parole  


restriction as excessive, stating that in light of the defendant's youth and the sentence's  


length, "we believe that his eligibility for parole can be more appropriately determined  


by the parole board in these circumstances."                           But  Gullard did not express a general  

presumption  that,  at  least  with  lengthy  sentences,  sentencing  courts  should  leave  


discretionary parole decisions to the Parole Board and should not impose a restriction on  

discretionary parole eligibility.  More importantly, Gullard was effectively repudiated  

by a 1974 amendment to then-controlling AS 33.15.230(a), taking away a sentencing  


court's authority to impose a discretionary parole eligibility restriction of less than one- 


third of the maximum sentence imposed.                          This amendment was retained and expanded  


                                                                                                    which set one-third  

with the 1985 enactment of AS 12.55.115 and AS 33.16.090(b)(1), 

of an active sentence as a  minimum  restriction on both a sentencing court's and the  


                                                                                    If former AS 33.15.230(a) and  

Parole Board's authority to grant discretionary parole. 

          26        497 P.2d 93 (Alaska 1972) (noting then-controlling AS 33.15.230(a); under  

that provision sentencing courts had authority to either restrict discretionary parole for  


any period  up to one-third of the maximum sentence imposed or specify that parole  

elibigility would be determined by the Parole Board).  

          27        Id . at 94.  

          28        Ch. 110,  3, SLA 1974.  Under the amended statute, the sentencing court  


could set the eligibility restriction term or, alternatively, simply "specify that the prisoner  


is eligible for parole at the time the [Parole] [B]oard determines." Former AS 33.15.230  


(amended 1974).  



                    As part of an extensive 1985 revision of the Alaska Parole Administration  

Act,  AS  12.55.115  was  enacted  and  the  existing  parole  administration  statutory  

framework of AS 33.15 was repealed and replaced with  the statutory framework of  


AS 33.16.  See Ch. 88,  1, SLA 1985.  

          30        AS 33.16.090(b)(1).  

                                                              -9-                                                        6856

----------------------- Page 10-----------------------


AS 33.16.090(b)(1) reveal anything about the legislature's post-Gullard view of when  

prisoners should be released on discretionary parole, they reveal a view favoring new  


and greater eligibility restrictions - we do not agree that the 1985 statutory framework  

carried  with  it  a  common  law  presumption  that,  with  respect  to  lengthy  sentences,  


sentencing courts should not impose more than the statutory minimum restriction on  

discretionary parole eligibility in deference to the Parole Board.  

                   We  conclude  that  when  imposing  a  discretionary  parole  eligibility  


restriction beyond the statutory minimum for any sentence, (1) a sentencing court may  

consider  whether  the  Parole  Board  will  at  a  later  date  be  better  able  to  assess  the  


defendant's prospects for successful parole, but (2) there is no legal presumption against  

a restriction beyond the statutory minimum set by AS 33.16.090(b)(1).  

          D.       Parole Eligibility Restriction Factors  


                   Alaska  Statute  12.55.115  does  not  itself  set  out  any  factors  sentencing  

courts should evaluate when they consider imposing parole eligibility restrictions beyond  

the statutory minimum.  Although we never have addressed the issue and it therefore  


comes to us as a matter of first impression, the court of appeals repeatedly has held that  


sentencing courts can restrict discretionary parole only when the statutory default term  

of  parole  eligibility  "would  be  insufficient  to  protect  the  public  and  [e]nsure  the  


defendant's reformation."     The State argues that limiting consideration only to these  

          31       See,  e.g.,  Lawrence  v.  State ,  764  P.2d  318,  321  (Alaska  App.  1988)  

(quoting Spencer v. State, 642 P.2d 1371, 1377 (Alaska App. 1982)); see also Bates v.  


State, 258 P.3d 851, 866 (Alaska App. 2011); Hinson v. State, 199 P.3d 1166, 1173  

(Alaska App. 2008); Cheely v. State, 861 P.2d 1168, 1181 (Alaska App. 1993); Stern v.  

State, 827 P.2d 442, 450 (Alaska App. 1992).  Cf. Bloomstrand v. State , 656 P.2d 584,  


591   (Alaska  App.  1982)  (stating  that  amount  of  time  reasonably  required  for  


rehabilitation is "among the various factors" sentencing courts can consider to restrict  

discretionary parole eligibility) (emphasis added).  

                                                            -10-                                                      6856

----------------------- Page 11-----------------------

two  criteria   is   inconsistent   with  article   I,   section  12  of   the  Alaska  Constitution,  

AS   12.55.005,  and   AS   12.55.115.    Korkow   responds   that  because   parole  eligibility  

restrictions are forward-looking and involve different considerations than sentencing,                          

sentencing courts should focus only on protection of the public and rehabilitation.                                                 We  

agree with the State.  

                     The Alaska Constitution states that "[c]riminal administration shall be based  


upon the following:  the need for protecting the public, community condemnation of the  


offender, the rights of victims of crimes, restitution from the offender, and the principle  

                          32   Alaska Statute 12.55.005, the declaration of purpose for Alaska's  

of reformation."     

sentencing  and  probation  laws,  incorporates  the  constitutional  criteria  by  requiring  

                                                                                                             33   As a matter of  

consideration of a set of related factors when imposing a sentence.  


statutory interpretation, AS 12.55.005's list of factors governs the sentencing court's  

authority under AS 12.55.115 to restrict discretionary parole "as part of a sentence of  

imprisonment."  The statutory language is clear and uncontradicted by any legislative  


history - a sentencing court must consider all the enumerated criteria in AS 12.55.005  

when restricting discretionary parole as a part of a sentence, not just public protection  

and the defendant's reformation.  


                     We recognize that not all of the AS 12.55.005 factors necessarily will be  

relevant in every parole eligibility determination, and that the most relevant factors often  


will  be  public  safety  and  potential  for  rehabilitation.    And  we  emphasize  that  a  

sentencing court may err by ignoring relevant factors or improperly weighing relevant  


factors when imposing a parole eligibility restriction beyond the statutory minimum.  A  

           32        Alaska Const. art. I,  12.  

           33        As noted earlier, these are "the  Chaney factors."  See supra note 12 and  

related text.  

                                                                  -11-                                                                6856  

----------------------- Page 12-----------------------

sentencing court must consider all of the statutory factors, determine which are relevant  


to the case, and support its overall sentence - including parole eligibility restrictions -  

with expressly articulated reasons backed by substantial evidence.34  

          E.         Parole Restriction In This Case  


                     The State argues that Korkow's parole restriction was not clearly mistaken  


in light of the 33-year default eligibility restriction and the sentencing court's discretion  

to restrict Korkow's parole eligibility for the entire 99-year term.  Korkow argues that  


his parole eligibility restriction is outside the permissible range based on "comparison"  

to other cases.  Korkow also argues that the sentencing court did not make sufficient  

findings supported by substantial evidence to impose the restriction.  

                     Korkow's attempt to show his sentence is clearly mistaken by comparing  

it to sentences in other cases must fail.  As the court of appeals has noted, "affirmance  


of a sentence on appeal means only that . . . the sentence is not excessive; it does not set  



a ceiling [or a floor] on sentences in similar cases."                                  We also have cautioned  that  


benchmarks based on prior cases "are not to be used as inflexible rules but rather as  


                                                                                                        Because Korkow's  

historically-based starting points for analysis in individual cases." 

          34        See Jackson v. State, 616 P.2d 23, 25 (Alaska 1980) (directing sentencing     

court to articulate reasons for restricting parole eligibility);                         Qualle v. State, 652 P.2d 481,  

486 (Alaska App. 1982) (holding restriction on parole eligibility in absence of findings  

supported by substantial evidence was clearly mistaken).  

          35        Hurn v. State , 872 P.2d 189, 199-200 (Alaska App. 1994).  

          36        State v. Hodari, 996 P.2d 1230, 1237 (Alaska 2000).  

                                                               -12-                                                          6856

----------------------- Page 13-----------------------

sentence is within the broad permissible range of reasonable sentences,37 we will not  

reject the sentencing court's restrictions for differing from those in other cases.  


                    Korkow's arguments that the sentencing court made insufficient findings  


supporting the parole restriction and that the findings were not supported by substantial  


evidence also are unavailing.  The sentencing court considered relevant Chaney factors  


in fashioning its overall sentence and entered specific findings that the parole restriction  

was necessary to protect Korkow's children and society at large for an extended period  


of time and was appropriate due to the "severity of the case" and Korkow's lack of  


remorse and concern.  The record is replete with evidence that Korkow's crime was  


atrocious.  It is undisputed that Korkow's children were present in the home.  Korkow  


declined to participate in the pre-sentence report, and he made no statements during  


allocution  indicating  remorse  or  concern.    We  therefore  hold  the  50-year  parole  

restriction made part of Korkow's sentence was not clearly mistaken.  

V.        CONCLUSION  


                    We REVERSE the court of appeals' ruling that the parole restriction was  

excessive and REMAND for re-institution of the original sentence.  



                    See Colgan v. State, 838 P.2d 276, 279 (Alaska App. 1992) (upholding 99- 


year  restriction);  accord  Alexander  v.  State ,  838  P.2d  269  (Alaska  App.  1992);  

Washington v. State, 828 P.2d 172, 175 (Alaska App. 1992); Stern v. State, 827 P.2d  

442, 450 (Alaska App. 1992).  

                                                             -13-                                                           6856  

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